This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-99-108

State of Minnesota,
Respondent,

vs.

Eduardo Santos Pereira,
Appellant.

Filed December 28, 1999
Affirmed
Forsberg, Judge[*]

Dakota County District Court
File No. KX981796

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

James C. Backstrom, Dakota County Attorney, Brent D. Wartner, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Forsberg, Judge, and Mulally, Judge.[**]

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

Appellant challenges his conviction of second-degree assault, arguing that (1) the evidence presented was insufficient to show that he had the requisite intent to cause fear of immediate bodily harm or death; and (2) the prosecutor committed misconduct in his closing argument. We affirm.

FACTS

On the night of July 21, 1998, appellant Eduardo Santos Pereira went to the home of Salvador Saybe unannounced and appeared intoxicated. Pereira was upset because the motor went bad in a vehicle he had purchased from Saybe, and he believed Saybe should give him his money back. When Saybe let Pereira in the house, Pereira held the butt of a rifle to Saybeís back. Saybe attempted to gain possession of the rifle from Pereira out of fear that it might discharge and endanger his fiancée, who was also in the home. Saybeís fiancée testified that she heard angry shouting between Saybe and Pereira, but she could not understand what was being said because it was spoken in Spanish. Saybeís roommate testified that he heard cussing between Saybe and Pereira and heard Pereira shout, "Iím going to kill you, you make [sic] my money." With the help of his roommate, Saybe was able to wrestle the rifle from Pereira and control him until the police arrived. According to the police officerís report, Pereira told Saybe that if anyone called the police, he would come back and kill Saybe and anyone near him. Upon recovering the rifle, the police officers determined that it was not loaded. Saybe testified that he had never seen Pereira with the rifle prior to the incident, and he did not want to testify in court regarding the assault charge because of his friendship with Pereira.

During closing arguments, the prosecutor attempted to explain the difference between assault and battery using a "familiar bar fight" as a hypothetical. Specifically, the prosecutor stated:

Then why did the state and the defense spend all the time worrying about who pointed the gun where and who hit what with the gun at what spot? Why was that important? Well, the big important thing is so that you all got the whole picture, that you saw what was going on. Yet I could have stopped. I mean, someone flashes a gun in your face after an argument, whether theyíre pushing, shoving, driving, any type of that thing, you immediately know what they meant when they flashed that gun. If they go like this (indicating), if they go like this, they show up at your doorway with a gun in your face, you know whatís going on. Is that an assault? You betcha.

* * * *

Whatís the assault? Itís the swinging of the arm at a person. Even if they miss. Whatís a battery? When they actually hit them. Okay. There you go. So the fact that he shows up with a weapon and brandishes it in someoneís face, yes, thatís the assault, thatís where it occurred. Is it important that he actually stuck it in his back and hit him with it in the back? No.

(Emphasis added.)

With regard to Saybeís testimony, the prosecutor suggested that Saybe was a reluctant witness, he was frightened to testify, and he did not trust the legal system in the United States. Regarding the latter suggestion, the prosecutor specifically stated:

Also keep in mind that Mr. Saybe is not here from the United States. He wasnít born here. He was raised in a different environment in Honduras. The court system, police officers, those things are certainly not going the way some people might have been raised to place a trust in those items. Those items are not to be trusted. The legal system is not to be trusted. Donít want to come to the legal system. Thatís not how problems are solved.

Pereira did not object to this language at any time during the closing argument nor ask for a curative instruction after completion of closing arguments.

The jury found Pereira guilty, and the district court sentenced him to a 36-month mandatory minimum sentence.

D E C I S I O N

I. Sufficiency of the Evidence

When the sufficiency of the evidence is challenged, the appellate court "views the evidence in the light most favorable to the verdict and assumes that the fact finder disbelieved any testimony conflicting with the result reached." State v. Thomas, 590 N.W.2d 755, 757 (Minn. 1999) (citations omitted). The verdict will not be overturned if the fact-finder could reasonably have found the defendant guilty of the charged offense, giving due regard to the presumption of innocence and to the prosecutionís burden of proof beyond a reasonable doubt. State v. Thomas, 590 N.W.2d 755, 757-58 (Minn. 1999).

Pereira claims that the evidence supporting his conviction was legally insufficient because the prosecution did not show beyond a reasonable doubt that he intended to cause Saybe to fear immediate bodily harm or death. Pereira argues that his conduct of entering Saybeís home with an unloaded rifle, arguing with Saybe, holding the butt of a the rifle to Saybeís back, and stating that he would kill Saybe if Saybe called the police only evidenced an intent to cause fear of future bodily harm or death.

When viewed in the light most favorable to the juryís decision, however, the evidence supports the conviction. It can be reasonably inferred from Pereiraís actions that he intended to cause Saybe fear of immediate bodily harm or death. Pereira showed up unannounced and intoxicated at Saybeís house, initiated a heated argument, held a rifle to Saybeís back, and threatened to kill Saybe if he called the police. Although Saybe testified that he was not afraid Pereira would shoot him, the effect of Pereiraís actions on Saybe is not determinative of Pereiraís intent. See State v. Soine, 348 N.W.2d 824, 826 (Minn. App. 1984) (holding victimís testimony she was not afraid of defendant is not determinative of defendantís intent), review denied (Minn. Sept. 12, 1984). We hold that the evidence supporting Pereiraís conviction was legally sufficient.

II. Prosecutorial Misconduct

When assessing a claim of prosecutorial misconduct, the reviewing court must first examine the challenged conduct and determine whether such conduct was improper, and, if the court so concludes, then a two-tiered test is applied. State v. Washington, 521 N.W.2d 35, 39-40 (Minn. 1994). If the reviewing court determines the prosecutor committed unusually serious prosecutorial misconduct, the conviction may be affirmed only if the misconduct was harmless beyond a reasonable doubt. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). Where the conduct is less serious, the test is "whether the misconduct likely played a substantial part in influencing the jury to convict." Id. at 128, 218 N.W.2d at 200. Lastly, the prosecutorís statements must be taken as a whole to determine if they provide a basis for granting a new trial. Washington, 521 N.W.2d at 40.

Pereira asserts that the prosecutorís comments during closing argument misstated the evidence, which constituted misconduct, and violated his due-process rights to a fair trial. He asserts that the prosecutorís use of the word "brandish" improperly suggested that Pereira pointed the rifle in Saybeís face. Pereira further argues that the prosecutorís statement regarding Saybeís reluctance to testify due to his mistrust of our legal system was not supported by evidence. He contends these statements played a substantial part in influencing the juryís decision to convict.

After careful review of the record, we conclude that the prosecutorís statements in closing argument constituted misconduct. Nonetheless, considering the context of the entire proceeding, we hold that the misconduct here was harmless and did not substantially influence the juryís decision to convict. First, Pereira failed to object to the prosecutorís statements and failed to seek curative jury instructions. When a defendant believes the prosecutor has made improper statements during closing argument, the defendant has a duty to object promptly or to seek curative instructions. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). Generally, a defendant who fails to do so is deemed to have waived the right to raise the issue on appeal. State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996). Such a failure to object or to seek curative instructions weighs heavily in a decision not to reverse because the district court might have been able to "ameliorate the effect of improper prosecutorial argument." Washington, 521 N.W.2d at 40 (quotation omitted).

A reviewing court may, however, reverse a conviction even though the defendant did not raise the issue with the district court if the prosecutorís comments were unduly prejudicial. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). Here, the prosecutorís statements during closing argument were not unduly prejudicial because he did not invite the jury to consider issues outside the scope of trial, nor did he interject his personal opinion regarding witness credibility or Pereiraís guilt. See State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994) (disapproving of prosecutorís interjection of personal opinion regarding characterization of witness testimony during closing argument, but holding remarks were isolated incidents that did not warrant new trial).

Second, the misconduct was mitigated by the district courtís instruction to the jury. The district court adequately instructed the jury that the closing statements were presented for the purposes of argument only and that they were to rely on their own recollections of the facts. See Washington, 521 N.W.2d at 40 (concluding district courtís instructions that arguments of attorney are not evidence weighed against reversal). Third, the evidence against Pereira is strong. The record evidence establishes that Pereira came to Saybeís home unannounced and intoxicated, demanding money for a vehicle. A heated argument took place between Saybe and Pereira, Pereira held the rifle to Saybeís back, and Pereira threatened to kill Saybe if he called the police. Lastly, the misconduct comprised only one page out of a closing argument covering 11 transcript pages. The argument as a whole concentrated on the evidence as it related to the elements of the crime charged. See id. (determining nature of nonobjectionable portion of closing argument supported conclusion that error was not reversible error).

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[**] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.